Introduction: Periodically, debate over minority party Senators
filibustering presidential nominees rears its head. In 2005, this issue
climaxed with the Democrats filibustering a handful of President Bush's
judicial nominees, and Senate Republicans threatening to change the
rules to prevent such a scenario. The partisan polarization and the
looming threat of a Senate shutdown over the issue was temporarily
averted by a compromise between a bipartisan group of Senators.
Nevertheless, this sparked a debate about the role and fairness of
filibusters in our political system, especially given their seemingly forgotten past use by
minority party Senators to block civil rights legislation and the
nominees and policies of the Democratic majority during the Clinton-era.

With
the rhetoric surrounding Supreme Court nominations once again
heating up, FairVote's Filibuster 2005 Report cuts through the partisan
rhetoric to give an honest assessment of the role of filibusters in
judicial nominations. Our report studies how representative various
groupings of Senators actually are when the amount of votes they
received are compared to a) the total voting population in Senate
elections, b) the combined voting strength of each party's votes
cast for its candidates in Senate elections, and c) the combined voting
strength of each party's votes cast for its winning candidates in Senate elections.The Next Nominee Holds the Balance:With
the retirement of crucial swing-Justice Sandra Day O'Connor, the
balance of the court now hangs on the fate of President Bush's nominee,
Samuel Alito. After the withdrawal of Bush's first pick, Harriet Miers,
both Republicans and Democrats are bracing themselves for a bruising
battle - but that is precisely why now is the time for Senators and
party leaders to pause and seek cooperative reforms for future judicial
nominees. Both parties are, not surprisingly, claiming to
represent the mainstream of
American voters' interests on the high court, and the threat of a
filibuster or Senate meltdown has once again emerged. At the center of
this partisan divide has been whether minority party Senators should
have
the right to filibuster a president's nominees, who they believe to be
outside of the mainstream, under their Constitutional power to "advise
and consent" to nominations. This debate raises clear issues of
representation and places the question of who represents the majority
at the center of this analysis.

A Majority Party with a Minority of Votes: Our new report on the
last decade of
U.S. Senate elections cuts through the partisan rhetoric to show how
the question of “majority rule” is problematic in the U.S. Senate.
Although the Republican Party holds a clear majority of Senate seats,
its members in fact did not win a majority of the votes -- the
Democratic Party Senators represent thousands more voters than their
counterparts across the aisle. Through our
state-by-state, winner-take-all elections, combined with the Senate’s
gross distortions of the commonly accepted principle of equal
representation based on population, one party can easily win a
disproportionate number of seats.

A Potential Filibuster Minority: On the flip side, our report shows how
relatively few people can be represented by Senators able to uphold a
filibuster. This raises questions both about the democratic
legitimacy of some filibusters (those where the minority senators
represent an even smaller minority of people, as was historically the case with some
filibusters against civil rights legislation) and legitimacy of some
attempts to end filibusters (those where the minority senators in fact
represent a majority of voters). The lesson for FairVote is that we
should shift the frame of the debate. Hence, before a meaningful discussion can
ever be had about the fairness of a filibuster, the conversation must
first be started about the fairness of representation in the Senate.Brief Origins of Senate Elections: In what came to be known as the Connecticut, or Great, Compromise, a
fledging nation decided to implement a bicameral legislature that
stipulates equal representation for all states in the Senate, and
population-adjusted representation in the House of
Representatives. While there was little argument as to the
population-based representation in the House, there was considerable
debate over the nature of equal representation in the Senate, to which
it was finally agreed on, much to the chagrin of heavily-populated
states. It was a concession forged in the spirit of adaquete
distributions of power within Congress, especially regarding the
concerns of the lesser populated states, to which Alexander Hamilton
declared "the truth is that it is a contest for power, not for liberty
. . . the State of Delaware having 40,000 souls will lose power, if she
has 1/10 only of the votes allowed to Pennsylvania having
400,000". This foundation for the American legislative branch has
persisted to this day, despite historical developments such as the
increasing disparity between larger/small state populations and the
rise of a two-party political establishment.

Methodology of the Report: The method was to review the Senate compositions of the 103rd Congress
(the last Congressional session when the Democrats had a Senate
majority), the 107th Congress (when the Republicans and Democrats split
an even 50/50 Senate breakdown), and the current 109th Congress
(Republican majority). Each Senator was assigned their votes in
their most recent election—for example, a candidate like Barack Obama
was assigned the number of voters who supported him in the most recent
2004 Senate election in Illinois, as an indicator of how many
constituents he represents. Note that Obama would, in the theory
of a winner-take-all plurality system, represent all of Illinois’s
residents, but this study employed only a consideration of how many
people actually voted for Obama (a more accurate reading of the popular
vote, especially when the two senators from a state are from different
parties). We used these figures to study the following issues, within
the 103rd, 107th, and 109th Congress:

When the two major party's aggregate votes are compared, who represents more voters?

What is the distortion between the percentage of votes that a party received and the percentage of seats that it received?

How many voters are represented by the minimum number of Senators (40) needed to sustain a filibuster?

Key Findings

A Distorted Senate with a Filibuster Majority

The
number of Senate seats represented by the majority party is wildly
inconsistent with the actual number of votes those Senators
received. In the 109th Congress, for example, the 45 Democratic
Senators who won election received the votes of 63 million Americans, while the 55
Republican Senators who won election only
received 58 million votes. In fact, combining the winning and
non-winning votes of each party's candidates (whether they won or lost) reveals that in the last
100 Senate races, the Democrats received 99,088,108 votes, while the
Republicans received 97,069,157 votes. In spite of this, the
Republicans hold a ten seat majority in the Senate.

In the 103rd Congress, given the total votes received by each
respective political party, the Democrats should have received 66 seats
in the Senate, while the Republicans should have received only 33
seats. The actual configuration, however, led to a drastic 10%
under-representation for the Democrats and a 11% over-representation
for the Republicans.

The Potential for a Tyranny of the Minority

On both sides of the political spectrum, filibusters threaten to
undermine democratic values, when a bare minimum of 40 Senators who
represent a miniscule fraction of voters, can undercut the majority
will. In the 103rd Congress (when Republican filibusters attempted to
derail Clinton Administration policies), the lowest 40 vote-getting
Republican Senators could mount a filibuster while only representing
13.60% of all voters in Senate elections.

Meanwhile,
in the 109th Congress, a bare 40 Democrats could
attempt a filibuster of Bush's Supreme Court nominee, while only
representing a dismal 20.58% of all voters in Senate elections (ie:
votes cast for Senate candidates of either party, regardless of whether
the candidate won or not)..

Conclusions from this study are described in subsequent sections,
including the breakdown of how the election cycles of the last decade
have fared, as well as individual reviews of the separate Congressional
sessions. Through our analysis, we have uncovered many instances
where the will of the voters was not reflected in the makeup of the
Senate. Analyzing specific election cycles yielded several instances
where there existed a large distortion between a party's percentage of
the vote and their percentage of seats (ie: they won a majority of
votes, but did not receive a majority of seats). Likewise, the
cumulative effect of these skewed elections revealed that the resulting
composition of three Congresses were plagued by partisan Senate makeups
inconsistent to the number of voters representated by a particular
party.

Speculations into what drives this startling disproportionate makeup in
Senate representation owes to the fact that, in the last decade at
least, the Democrats tend to secure wins in the most densely populated
states—California, New York, Illinois, New Jersey, and Maryland are
popular examples—while the Republicans often garner wins in less
populated states like Montana or Idaho. This accumulation of
smaller state winnings, however, guarantees the likelihood that
Republicans are usually over-represented in the Senate. An
interesting population statistic to note when evaluating the efficacy
of Senate-based equal representation is that while the 21
least-populated states in the nation comprises an aggregate population
equal to that of the entire population of California, they secure 42
Senators in the Senate, compared to the 2 that California currently has.